Finance (No. 2) Act 2017

Section 35

SCHEDULE 12 Trading income provided through third parties: loans etc outstanding on 5 April 2019

Application of sections 23A to 23H of ITTOIA 2005 in relation to loans etc. outstanding on 5 April 2019

1 (1) A loan or quasi-loan in relation to which sub-paragraph (2) applies is to be treated as a “relevant benefit” for the purposes of sections 23A to 23H of ITTOIA 2005.

(2) This sub-paragraph applies in relation to a loan or a quasi-loan if—

(a) the loan or quasi-loan was made—

(i) on or after 6 April 1999, and

(ii) before 6 April 2017, and

(b) an amount of the loan or quasi-loan is outstanding immediately before the end of 5 April 2019.

(3) Where section 23E of ITTOIA 2005 applies in relation to a relevant benefit which is a loan or quasi-loan in relation to which sub-paragraph (2) applies, section 23E has effect—

(a) as if the “relevant benefit amount” were the amount of the loan or quasi-loan that is outstanding immediately before—

(i) the end of the approved repayment date, if the relevant benefit is an approved fixed term loan on 5 April 2019, or

(ii) the end of 5 April 2019 in any other case,

(b) as if section 23E(1)(a) specified—

(i) the tax year in which the approved repayment date falls, if the relevant benefit is an approved fixed term loan on 5 April 2019, or

(ii) the tax year 2018-2019 in any other case, and

(c) where T ceases to carry on the relevant trade in a tax year before the tax year so specified in section 23E(1)(a), as if section 23E(1)(b) were omitted and as if section 23E(1) provided that the relevant benefit amount is to be treated for income tax purposes as a post-cessation receipt of the trade received in the tax year so specified in section 23E(1)(a).

(4) This paragraph is subject to paragraphs 19 and 20 (accelerated payments).

(5) For the purposes of this paragraph, whether an amount of a loan or quasi-loan is outstanding at a particular time—

(a) is to be determined in accordance with the following provisions of this Schedule, and

(b) does not depend on the loan or quasi-loan subsisting at that time.

Meaning of “loan”, “quasi-loan” and “approved repayment date”

2 (1) In this Schedule “loan” includes—

(a) any form of credit;

(b) a payment that is purported to be made by way of a loan.

(2) For the purposes of paragraph 1, a person (“P”) makes a “quasi-loan” to T if (and when) P acquires a right (the “acquired debt”)—

(a) which is a right to a payment or a transfer of assets, and

(b) in respect of which the condition in sub-paragraph (3) is met.

(3) The condition is met in relation to a right if there is a connection (direct or indirect) between the acquisition of the right and—

(a) a payment made, by way of a loan or otherwise, to T, or

(b) a transfer of assets to T.

(4) Where a loan or a quasi-loan made to T is replaced, directly or indirectly, by another loan (the “replacement loan”), references in paragraph 1 to the loan are references to the replacement loan.

(5) Where a loan or a quasi-loan made to T is replaced, directly or indirectly, by another quasi-loan (the “replacement quasi-loan”), references in paragraph 1 to the quasi-loan are references to the replacement quasi-loan.

(6) In this Schedule, “approved repayment date”, in relation to an approved fixed term loan, means the date by which, under the terms of the loan at the time of making the application for approval under paragraph 16, the whole of the loan must be repaid.

(7) In this paragraph and in paragraphs 3, 9, 10, 19 and 20—

(a) “T” is the person mentioned in section 23A(2) of ITTOIA 2005,

(b) references to T include references to a person who is or has been connected with T, and

(c) for that purpose, section 993 of ITA 2007 (meaning of “connected”) applies for the purposes of this Schedule but as if subsection (4) of that section were omitted.

Meaning of “outstanding”: loans

3 (1) An amount of a loan is “outstanding” for the purposes of paragraph 1 if the relevant principal amount exceeds the repayment amount.

(2) In sub-paragraph (1) “relevant principal amount”, in relation to a loan, means the total of—

(a) the initial principal amount lent, and

(b) any sums that have become principal under the loan, otherwise than by capitalisation of interest.

(3) In sub-paragraph (1) “repayment amount”, in relation to a loan, means the total of—

(a) the amount of principal under the loan that has been repaid before 5 December 2016, and

(b) payments in money made by T on or after 5 December 2016 by way of repayment of principal under the loan.

(4) A payment is to be disregarded for the purposes of sub-paragraph (3)(b) if there is any connection (direct or indirect) between the payment and a tax avoidance arrangement (other than the arrangement in pursuance of which the loan was made).

(5) In this paragraph and in paragraph 9, “tax avoidance arrangement” means an arrangement which has a tax avoidance purpose.

(6) For the purposes of sub-paragraph (5), an arrangement has a tax avoidance purpose if sub-paragraph (7) applies to a person who is a party to the arrangement.

(7) This sub-paragraph applies to a person if the main purpose, or one of the main purposes, of the person entering into the arrangement is the avoidance of tax.

(8) The following paragraphs apply for the purpose of determining whether any payment is connected with a tax avoidance arrangement—

(a) a payment is connected with a tax avoidance arrangement if (for example) the payment is made (wholly or partly) in pursuance of—

(i) the tax avoidance arrangement, or

(ii) an arrangement at one end of a series of arrangements with the tax avoidance arrangement being at the other end, and

(b) it does not matter whether the person making the payment is unaware of the tax avoidance arrangement.

Meaning of “outstanding”: loans in currencies other than sterling

4 (1) In paragraphs 5 to 8 “the loan currency”, in relation to a loan, means the currency in which the initial principal amount of the loan is denominated (whether or not that amount is paid in that currency).

(2) For the purposes of paragraphs 5 to 8, the value of an amount in a particular currency is to be determined by reference to an appropriate spot rate of exchange.

5 (1) This paragraph applies in relation to a loan where the loan currency is a currency other than sterling.

(2) But this paragraph does not apply if paragraph 8 applies in relation to the loan.

(3) The amount of the loan that is outstanding, at the relevant time, is to be calculated in sterling as follows—

• Step 1

  Calculate, in the loan currency, the amount that is outstanding at that time.

• Step 2

  Take the value in sterling, at that time, of that amount.

(4) For the purposes of this paragraph and paragraph 8, the “relevant time” in relation to a loan is the time immediately before—

(a) the end of the approved repayment date, if the loan is an approved fixed term loan on 5 April 2019, or

(b) the end of 5 April 2019 in any other case.

(5) See paragraph 6 for provision about repayments made in a currency other than the loan currency.

Repayments in currencies other than the loan currency

6 (1) This paragraph applies in relation to a loan where—

(a) payments in money are made by way of repayment of principal under the loan, and

(b) some or all of the payments are made in a currency other than the loan currency.

(2) But this paragraph does not apply if paragraph 8 applies in relation to the loan.

(3) For the purposes of calculating the repayment amount in relation to the loan, the amount of each of the payments referred to in sub-paragraph (1)(b) is an amount equal to its value in the loan currency on the date it is made.

Loans made in a depreciating currency

7 (1) Paragraph 8 applies in relation to a loan where—

(a) the loan currency is a currency other than sterling, and

(b) it is reasonable to suppose that the main reason, or one of the main reasons, for the loan being made in that currency is that the loan currency is expected to depreciate as against sterling during the loan period.

(2) The “loan period”, in relation to a loan, is the period—

(a) beginning at the time the loan is made, and

(b) ending with the time by which, under the terms of the loan, the whole of the loan is to be repaid.

8 (1) Where this paragraph applies in relation to a loan—

(a) paragraphs 5 and 6 do not apply in relation to the loan, and

(b) sub-paragraphs (2) to (5) apply for the purposes of calculating the amount of the loan that is outstanding at the relevant time (as defined in paragraph 5(4)).

(2) The relevant principal amount, in relation to the loan, is an amount equal to the total of—

(a) the value in sterling, at the reference date, of the initial principal amount lent, and

(b) the value in sterling, at the reference date, of any sums that become principal under the loan, otherwise than by capitalisation of interest.

(3) The “reference date”—

(a) in relation to an amount within sub-paragraph (2)(a), means the date on which the loan is made, and

(b) in relation to a sum within sub-paragraph (2)(b), means the date on which the sum becomes principal.

(4) The repayment amount, in relation to the loan, is an amount equal to the total of—

(a) the amount of principal under the loan that has been repaid in sterling, and

(b) where payments are made, in a currency other than sterling, by way of repayment of principal under the loan, the amount equal to the sterling value of the payments.

(5) The “sterling value” of a payment is its value in sterling on the date it is made.

Meaning of outstanding: “quasi-loans”

9 (1) An amount of a quasi-loan is outstanding for the purposes of paragraph 1 if the initial debt amount exceeds the repayment amount.

(2) In sub-paragraph (1), “initial debt amount” means the total of—

(a) an amount equal to the value of the acquired debt (see paragraph 2(2)), and

(b) where P subsequently acquires a further right (the “additional debt”) to a payment, or transfer of assets, in connection with the payment mentioned in paragraph 2(3)(a) or (as the case may be) the transfer mentioned in paragraph 2(3)(b), an amount equal to the value of the additional debt.

(3) For the purposes of sub-paragraph (2)—

(a) where the acquired debt is a right to payment of an amount, the “value” of the debt is that amount,

(b) where the additional debt is a right to payment of an amount, the “value” of the debt is that amount, but is nil if the additional debt accrued to P by the capitalisation of interest on the acquired debt or another additional debt, and

(c) where the acquired debt or additional debt is a right to a transfer of assets, the “value” of the debt is an amount equal to—

(i) the market value of the assets at the time the right is acquired (or the value of the right at that time if the assets are non-fungible and not in existence at that time), or

(ii) if higher, the cost of the assets at that time.

(4) In sub-paragraph (1), “repayment amount”, in relation to a quasi-loan, means the total of—

(a) the amount (if any) by which the initial debt amount has been reduced (by way of repayment) before 5 December 2016,

(b) payments in money (if any) made by T on or after 5 December 2016 by way of repayment of the initial debt amount, and

(c) if the acquired debt or additional debt is a right to a transfer of assets, and the assets have been transferred, an amount equal to the market value of the assets at the time of the transfer.

(5) A payment or transfer is to be disregarded for the purposes of sub-paragraph (4)(b) or (c) if there is any connection (direct or indirect) between the payment or transfer and a tax avoidance arrangement (other than the arrangement under which the quasi-loan was made).

(6) In this paragraph, “market value” has the same meaning as it has for the purposes of TCGA 1992 by virtue of Part 8 of that Act.

Meaning of “outstanding”: quasi-loans in currencies other than sterling

10 (1) Paragraphs 11 to 14 apply where P makes a quasi-loan to T by reason of acquiring a right to a payment in a particular currency (the “quasi-loan currency”).

(2) For the purposes of paragraphs 11 to 14, the value of an amount in a particular currency is to be determined by reference to an appropriate spot rate of exchange.

11 (1) This paragraph applies in relation to the quasi-loan if the quasi-loan currency is a currency other than sterling.

(2) But this paragraph does not apply if paragraph 14 applies in relation to the quasi-loan.

(3) The amount of the quasi-loan that is outstanding, at the relevant time, is to be calculated in sterling as follows—

• Step 1

  Calculate, in the quasi-loan currency, the amount that is outstanding at that time.

• Step 2

  Take the value in sterling, at that time, of that amount.

(4) For the purposes of this paragraph and paragraph 14, the “relevant time” in relation to a quasi-loan is the time immediately before the end of 5 April 2019.

(5) See paragraph 12 for provision about repayments made in a currency other than the quasi-loan currency.

Repayments in currencies other than the quasi-loan currency

12 (1) This paragraph applies in relation to the quasi-loan if—

(a) payments in money are made by way of repayment of the initial debt amount, and

(b) some or all of the payments are made in a currency other than the quasi-loan currency.

(2) But this paragraph does not apply if paragraph 14 applies in relation to the quasi-loan.

(3) For the purposes of calculating the repayment amount in relation to the quasi-loan, the amount of each of the payments referred to in sub-paragraph (1)(b) is an amount equal to its value in the quasi-loan currency on the date it is made.

Quasi-loans made in a depreciating currency

13 (1) Paragraph 14 applies in relation to the quasi-loan if—

(a) the quasi-loan currency is a currency other than sterling, and

(b) it is reasonable to suppose that the main reason, or one of the main reasons, for the quasi-loan being made in that currency is that the quasi-loan currency is expected to depreciate as against sterling during the quasi-loan period.

(2) The “quasi-loan period”, in relation to a quasi-loan, is the period—

(a) beginning at the time the quasi-loan is made, and

(b) ending with the time by which, under the terms of the quasi-loan, the whole of the quasi-loan is to be repaid.

14 (1) Where this paragraph applies in relation to the quasi-loan—

(a) paragraphs 11 and 12 do not apply in relation to the quasi-loan, and

(b) sub-paragraphs (2) to (5) apply for the purposes of calculating the amount of the quasi-loan that is outstanding at the relevant time (as defined in paragraph 11(4)).

(2) The initial debt amount, in relation to the quasi-loan, is an amount equal to the total of—

(a) the value in sterling, at the reference date, of the acquired debt, and

(b) the value in sterling, at the reference date, of any additional debt.

(3) The “reference date”, in relation to a right within sub-paragraph (2)(a) or (2)(b), means the date on which P acquires it.

(4) The repayment amount, in relation to the quasi-loan, is an amount equal to the total of—

(a) the amount of the initial debt amount that has been repaid in sterling, and

(b) where payments are made, in a currency other than sterling, by way of repayment of the initial debt amount, the amount equal to the sterling value of the payments.

(5) The “sterling value” of a payment is its value in sterling on the date it is made.

Meaning of “approved fixed term loan”

15 (1) A loan is an “approved fixed term loan” on 5 April 2019 if, at any time on that day, it is a qualifying loan which has been approved by an officer of Revenue and Customs in accordance with paragraph 16.

(2) A loan is a “qualifying loan” if—

(a) the loan was made before 9 December 2010,

(b) the term of the loan cannot exceed 10 years, and

(c) it is not an excluded loan under sub-paragraph (3).

(3) A loan is an excluded loan if, at any time after the loan was made—

(a) the loan has been replaced, directly or indirectly, by another loan, or

(b) the terms of the loan have been altered so as—

(i) to meet the condition in sub-paragraph (2)(b), or

(ii) to postpone the date by which, under the terms of the loan, the whole of the loan must be repaid.

Approval: application to HMRC

16 (1) A person may make an application to the Commissioners for Her Majesty’s Revenue and Customs for approval of a qualifying loan made to T.

(2) An officer of Revenue and Customs may grant such an application if satisfied that, in relation to the loan—

(a) the qualifying payments condition is met (see paragraph 17), or

(b) the commercial terms condition is met (see paragraph 18).

(3) Subject to sub-paragraph (4), an application may be made in 2018.

(4) An application may be made after 2018 if an officer of Revenue and Customs considers it reasonable in all the circumstances for a late application to be made.

(5) An application for an approval must be made in such form and manner, and contain such information, as may be specified by, or on behalf of, the Commissioners for Her Majesty’s Revenue and Customs.

(6) An officer of Revenue and Customs must notify the applicant of the decision on an application.

Approval: qualifying payments condition

17 (1) The qualifying payments condition is met in relation to a qualifying loan if, during the relevant period—

(a) payments have been made in respect of the repayment of the principal of the loan, and

(b) the payments have been made at intervals not exceeding 53 weeks.

(2) The “relevant period” in relation to a loan is the period beginning with the making of the loan and ending with the making of the application.

Approval: commercial terms condition

18 (1) The commercial terms condition is met in relation to a qualifying loan if—

(a) either—

(i) it is reasonable to assume that, had the qualifying loan been made in the ordinary course of a lending business, loans on terms comparable to those of the qualifying loan would have been available to members of the public, or

(ii) the qualifying loan was made in the ordinary course of a lending business; and

(b) the borrower has, in all material respects, complied with the terms of the loan.

(2) For the purposes of sub-paragraph (1), a loan is made in the ordinary course of a lending business if it is made by a person in the ordinary course of a business carried on by the person which includes—

(a) the lending of money, or

(b) the supplying of goods or services on credit.

Accelerated payments

19 (1) Paragraph 20(1) applies where—

(a) section 23E of ITTOIA 2005 would (ignoring paragraph 20) apply in relation to a relevant benefit arising to T,

(b) the relevant benefit is a loan or quasi-loan in relation to which paragraph 1(2) applies,

(c) an accelerated payment notice, or a partner payment notice, relating to a relevant charge (the “accelerated payment notice”) has been given under Chapter 3 of Part 4 of FA 2014,

(d) T makes a payment (the “accelerated payment”) in respect of the understated or disputed tax to which the notice relates,

(e) the accelerated payment is made on or before the relevant date, and

(f) the amount of the loan or quasi-loan that, at the end of the relevant date, is outstanding for the purposes of paragraph 1 (see paragraphs 3 to 14) is equal to or less than the amount of the accelerated payment.

(2) In sub-paragraph (1)(c), “relevant charge” means a charge to tax under section 23E of ITTOIA 2005 arising by reason of a relevant benefit which arises to T in pursuance of the relevant arrangement in pursuance of which the relevant benefit mentioned in sub-paragraph (1)(a) and (b) arises.

(3) In sub-paragraph (1)(e) and (f), “the relevant date” means—

(a) the approved repayment date, if the relevant benefit is an approved fixed term loan on 5 April 2019, or

(b) 5 April 2019, in any other case.

20 (1) T may make an application to the Commissioners for Her Majesty’s Revenue and Customs to be treated—

(a) as if the relevant benefit mentioned in paragraph 19(1)(a) and (b) arises only if the condition in sub-paragraph (2) is met, and

(b) as if it arises immediately before the end of the 30 days beginning with the date on which the condition in sub-paragraph (2) becomes met.

(2) The condition is that, on the withdrawal of the accelerated payment notice or on the determination of an appeal, any part of the accelerated payment is repaid.

(3) Subject to sub-paragraph (4), an application under sub-paragraph (1) may be made in 2018.

(4) An application may be made after 2018 if an officer of Revenue and Customs considers it reasonable in all the circumstances for a late application to be made.

(5) An application must be made in such form and manner, and contain such information, as may be specified by, or on behalf of, the Commissioners for Her Majesty’s Revenue and Customs.

(6) An officer of Revenue and Customs must notify the applicant of the decision on an application under this paragraph.